A former policy that
effectively allowed nude sunbathing at a state beach as long as other
beachgoers did not complain was never adopted as a regulation, and thus did not
have to be formally repealed in order for officials to crack down on the
practice, the Fourth District Court of Appeal has ruled.

Div. Three, in a June 25
opinion certified Friday for publication, overturned a writ of mandate that had
directed the California State Department of Parks and Recreation to reinstate
its “Cahill Policy” pending formal adoption of the department’s plan to begin
strict enforcement of its anti-nudity policy in all units of the state park
system.

Russell W. Cahill was
the director of the department when, in 1979, he sent out an internal
memorandum setting forth guidelines for enforcement of the anti-nudity
regulation, California Code of Regulations Sec. 4322. Cahill said that
proponents had, at public meetings, set forth a strong argument that “a few
miles of beach” should be set aside as clothing-optional, but “the public is
extremely polarized on this issue.”

The solution, Cahill
said, was that “enforcement of nude sunbathing regulations within the State
Park System shall be made only upon the complaint of a private citizen” and
that no one should be cited or arrested for violating Sec. 4322 unless efforts
to obtain voluntary compliance were unavailing.

The department, however,
announced last year that it was repealing the Cahill policy with respect to San
Onofre State Beach, which includes a small area, Trail 6, where nude sunbathing
has gone on for years. The department said that nearby population growth had
increased the number of beachgoers, and there had been complaints regarding
nudity, lewd conduct, and sexual harassment of department employees, and that
as a result, it would begin strict enforcement of Sec. 4322 after Labor Day.

Before then, however,
the Naturist Action Committee and others filed their mandate petition, claiming
the department was prohibited by the Administrative Procedures Act from
repealing the Cahill policy without giving the public formal notice and an
opportunity to comment.

Orange Superior Court
Judge Sheila Fell agreed and issued the writ.

Justice William
Rylaarsdam, writing for the Court of Appeal, said the trial judge was correct
that the Cahill policy meets the APA definition of a regulation. But the writ
should not have been issued, he said, because the policy was never lawfully
adopted.

The department, the
justice explained, did not send notice of the policy to the public, provide an
opportunity for public comment, or file underlying materials with the Office of
Administrative Law, all of which the APA requires.

The justice wrote: “If
an agency adopts a regulation without complying with the APA requirements it is
deemed an ‘underground regulation’...and is invalid....Because the Cahill
Policy is an underground regulation it cannot be enforced. Thus, the latest
directive of the department rescinding the policy does not have to go through
the APA rule-making process. Its effect is merely to discontinue an invalid policy.”

The case is Naturist
Action Committee v. California State Department of Parks and Recreation, G040929.